### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 08-31249

BOBBY W SWINDLE, JR. and TRACY A SWINDLE, As Administrators of the Estate of Morgan Taylor Swindle, Plaintiffs - Appellants
v. LIVINGSTON PARISH SCHOOL BOARD; RANDY POPE, Superintendent of Livingston Parish School Board; PAUL PASTOREK; LOUISIANA DEPARTMENT OF EDUCATION; STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION, Defendants - Appellees

Appeal from the United States District Court for the Middle District of Louisiana

Before BENAVIDES, DENNIS, and ELROD, Circuit Judges. DENNIS, Circuit Judge: Plaintiffs, B ob b y a n d Tracy Swindle, brought this action for damages under 42 U.S.C. § 1983 on behalf of their minor daughter, Morgan Swindle, who allegedly was deprived of her constitutional rights of procedural and substantive due process and equal protection of the laws when she was expelled from public school and refused alt ern ative e duc atio n b en ef it s durin g the 2005-2006 academic

s c h o ol year by Defendants—the Livingston Parish School Board (“LPSB”); its Superintendent, Randy Pope; the Louisiana State Superintendent of Education; U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 8 , 20 11 Lyle W . Cayce Clerk Case: 08-31249 Document: 00511596533 Page: 1 Date Filed: 09/08/2011No. 08-31249

the Louisiana Department of Education (“DOE”); and the Louisiana State Board of Elementary and Secondary Education (“BESE”). Defendants moved for
summary jud g m e nt. Plaintiffs opposed that motion but did not file a crossmotion. The district court granted summary judgment in f av o r of Defendants dismissing all of Plaintiffs’ claims. We AFFIRM the summary judgment in favor of the State Superintendent of Education, sued in his official capacity, and the DOE and the BESE, as they are entitled to state sovereign immunity from suit for money damages in federal court. Furth er, we AFFIRM the summary judgment dismissing Plaintiffs ’ cl ai m s th at Mor gan’ s p ro c e dur al an d s ub s t antive due process rights were violated in connection with her expulsion, the extension of her term of expulsion, and her denial of readmission as a ninth grader for the 2006-2007 school year; and dismissing Plaintiffs’ claim that Morgan was denied equal protection of the laws by being denied access to an alternative education program that another student, expelled for th e s a m e reason as Morgan, was provided. However, we REVERSE the summary judgment in favor of the LPSB and Pope in respect to Plaintiffs’ procedural due process claim grounded on Defendants’ denial, without proper notice and a fair h e a ri n g , of the Swindles’ request that Morgan continue her public education during her expulsion in an alternative education program. This decision prematurely terminated Morgan’s public education benefits for the 2005-2006 academic y e a r and caused her to reenter public school as a repeating eighth grader in 2006-2007. Accordingly, we REMAND this case to the district court for further proceedings on Plaintiffs’ procedural due process claim with r e s pect to the alleged denial of continued public education a l b e nefits in an alternative educational program during Morgan’s expulsion. BACKGROUND During the 2005-2006 academic year, Morgan was thirteen years old and

a s t udent in the eighth grade at Doyle High School in Livingston Paris h , 2 Case: 08-31249 Document: 00511596533 Page: 2 Date Filed: 09/08/2011No. 08-31249

Louisiana. In October 2005, Morgan attended an evening school event, a student dance, on school pr operty. At some point, Morgan and a small group of other students exited the dance and left the school property. One of the other students offered marijuan a f

o r the group to share in smoking. Morgan smoked the substance with the other students while off school property and away from the school dance event. The students then returned to the school property and the dance under the effects of marijuana. However, there is no evidence that Morgan possessed marijuana on school property or at the school dance event; and there is no evidence that Morga n c o n t r o lled or directed other students to possess marijuana on school property or at the school dance event. The school principal, Tony Terry, learned o f th e students’ conduct and d e c i d ed to take disciplinary action. In respect to Morgan, he decided to recommend that she be expelled for the remainder of the academic year. Under Louisiana law, Terry c o u l d not expel a student. Instead, he was required to

reco m mend expulsion to the LPSB superintendent, who was then required to make an independent determination of the ultimate punishment. See La. Rev. Sta t

. Ann. § 17:416(C)(1). Therefore, in an undated letter to LPSB administrators, Terry explained his recommendation, stating that Morgan had admitted “to leaving [the] school function, smoking marijuan a w i th other students, and returning to [the] school function under the influence.” Further, choosing from an a u thorized list of grounds for expulsion, he stated that Morgan’s conduct justified expulsion for the rest of the academic year b ased
upon ground “21-Any Other Serious Offense. ” In his letter, Terry did not give any other ground supporting his recommendation. On November 3, 2005, Terry wrote to Morgan’s parents, informing them that “[i]t has been recommended to the Superin t e n d e n t that your child be expelled from school for the remainder o f th is school session.” As part of this letter, Terry included a chart entitled “Reason(s) [for] Expulsion,” containing a
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list of possible grounds for expulsion. On that chart, Terry again indicated that Morgan’s conduct justified expulsion based upon ground “21-Any Other Serious Offense.” He did not select ground “7-Use/Possess Controlled Substance,” which was also listed on the chart. 1 On November 11, 2005, Morgan and her mother attended a h e a ring conducted by an LPSB a d m i n istrator, Paulette Foster, concerning Terry’s recommendation. In light of Terry’s r e c o mmendation and the information collected at the hearing, LPSB Superintendent Pope de t e r m i n ed that Morgan should be expelled for one calendar year, rather than for the rest of the academic year, as recommended by Terry. On November 14, 2005, the Swi n dl e s w ere provided written notice of th i s d ecision in the form of a letter from Pope to Morgan’s parents. The letter stated that “violations of Livingston Parish Public School policies, as well as lo c a l s c hool rules pertaining to the conduct of a student, are not acceptable” and informed the Swindles that they had a right to

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an administrative appeal. Pope’s letter did not specify any other ground for his decision, make findings or render any decision in respect to Morgan’s right to continued public education in an alternative education program or otherwise. 2 The Swindles chose not to exercise their right to an administrative appeal, but th e y di d not waive or forfeit Morgan’s other rights, including her right to continued public education in an alternative education program. See generally Goss v. Lopez , 419 U.S. 565 (1975); La. Rev. Stat. § 17:416.2(A)(1). According to a di a ry o f events prepared by Morgan’s mother and intro duc e d in th e district court summary judgment record, starting on Nove mb er 9, 2005—before the LPSB’s hearing, but after it was clear that Morgan would

Thatle tte r st atedinf ull: 2 De ar Mr

. and Mr s. S wi ndle : This is to advis e that as a res ult of the hearing held for your child Mor gan T a ylor Swin dleatthe Livings ton Parish Pu blic Sch ools Of fice on Friday,Nove mbe r 11 , 20 05 at 9: 00 a.m ., it is my dec isi on, aft er revie wi ng the tes tim ony pr es ente d, that the expu lsion of Mor gan Taylor Swin dle for twe lve (1 2) calenda r months is to be upheld

. I regr et having to make this dec isi on; how ever, violat ions of Livingst on Paris h Public Scho ol pol icie s, as we ll as loca l sc hool rule s pertaini ng to the cond uct of a st uden t, are not acc ept able.
Mor gan Taylor Swin dle is not to ret urn to the Do yle High School cam pus for any reas on nor is she to att end any sc hool func tio ns involving the Do yle High School for the rem aind er of this exp uls ion.
With in five days aft er rec eip t of this let ter , you may r eques t in writin g that this dec isi on be revie we d by the boar d me mbe rsof Livin gst on Paris h S choo ls.
Sinc ere ly, Randy K. Pop e Sup erin tend ent Livingst on Paris h Pub lic Scho ols

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face some disciplinary action—the Swindles requested that Morgan be provided “alternative education” by the LPSB, if she were expelled. Af t e r M organ’s expulsion on November 14, 2005, the Swindles continued to request that Doyle High School, Pope, the LPSB, and the DOE provide an alternative educational program for Morgan. Their petitions were not granted. Furthermore, according to the summary judgment record presented for our review, neither Pope nor any other educational officer or entity provided the Swindles with prior notice that Morgan would be refused access to an alternative education program during her expulsion, and the Swindles were not afforded a hearing in connection with that deprivation of continued public educational benefits for Morgan, either before or after their requests were not granted. Louisiana Revised Statutes §17:416.2(A)(1) provides: “Any student suspended or expelled from sc h o o l p u r suant to the provisions of R.S. 17:416,” subject to certain exceptions, “shall remain u n d e r the supervision of the governing authority of the city, parish, or other local public school system taking such action using alternativ e e du c a tion programs for suspended and expelled students approved by the State Board of Elementary and Secondary Education

. . . .” But “[a]ny city, parish, or other local school system unable to comply with the provisions of Subsection A of this Section for economically justifiable reasons
as defined by the State Board of Elementary and Secondary Education may apply to the board on a school year to school ye a r b a s i s for a waiver from the requirements of these provisions.” La. Rev. S t at

. Ann . § 1 7:416.2(B)(1). However, effective with the 2008-2009 school year, such waivers are prohibited. La. Rev. Stat. Ann. § 17:416.2(B)(3). Pope and the other defendants acknowledge that at the time the Swindles requested and were refused alternative education for Morgan, no “waiver had

. . . been sought [by the LPSB] for that particular school year [2005-2006].” Pope Br. 8. They emphasize th a t th e LPSB had obtained waivers from providing its

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students alternat iv e education from 1995 to 2004. Nonetheless, according to a letter from the LPSB to the BESE, it was not until March 10, 2006, almost four months after the LPSB had terminated all public education a l benefits for Morgan, that the LPSB petitioned the DOE for a waiver of the LPSB’s obligation to provide public school children alternative education for the 2005-2006 school year. Insofar as the record discloses, before Defendants rejected the Swindles’ requests that Morgan receive alternative e ducation, neither the LPSB, Pope, nor the other defendants notified the Swindles or Morgan that the LPSB intended to apply for such a waiver. Thus, the Swindles and Morgan were not given any kind of notice, hearing or process in connection with the LPSB’s denial of public education benefits to Morgan through an alternative education program or otherwise. Without a c c e s s to continuing public educational benefits, the Swindles endeavored to ho m e - s c h ool Morgan for the rest of the 2005-2006 school year. They then petitioned the LPSB to have Morgan readmitted to Doyle High School at the start of the 2006-2007 school year. The LPSB and Pope agree d , but 3 required that Morgan reenter as an eighth grader and repeat her eighth grade classwork, refusing to allow her readmission to the ninth grade along with her former classmates.

“Plai ntif fs then so ught to have Mo rgan tak e the [Lou isi ana Educ at i o n A ss es sm ent 3 Progra m (‘ LEAP’)] tes t. The Scho ol Boardinitial ly refu se d to ad mi nis terthe tes t to Mo rgan. Plaint iffs brou ght sui t in the 21s t Judi cial Di st ric t Court of Louis iana and rec eived injunct ive reli ef man dat ing that M o r g a n b e allow ed to tak e the tes t. Mo rgan too k the LEAP tes t and pa s s e d , s c orin g at the achie veme nt level of ‘m ast ery’ in Englis h and ‘bas ic’ in Mathem atic s . De sp ite Mo rgan’s sc ore s on the LEAP and her hom e sc hooli ng, the LPSB dec lined to pr om ote Mo rgan to th e ninth grad e upon her ret urn to Do yle Hi gh Scho ol. Aft er further liti gation in st ate court, the sc hool sys tem wa s ord ere d to cons ide r Mo rgan’s hom e s c h o o l w o rk and det erm ine wh ethe r Mo rgan sho uld be advanc ed to the next grad e. LPSB evaluat ed Mo rgan and dec ide d that she sho uld not be advanc ed beca use she wa s 11 days sho rt of the att enda nce requ irem ent andhad fail ed themathport ion of anotherplace me nt tes t adm inis ter ed by the Scho ol Board .” Swi ndle v. Liv ings ton Pari sh Sch. Bd. , No. 06-8 37-JJB, 2008 WL 5157727 , at *1 (M .D

. La. De c. 9, 200 8) (unp ublis hed) (foo tnot esom itt ed)

.
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In June 2006, the Swindles filed suit in state court seeking injunctive relief against Defendants related to Morgan’s readmission to Doyle High School. B.W.S., Jr. v. Livingston Parish Sch. Bd. , 960 So. 2d 997, 998 (La. Ct. App. 1st Cir. 2007). On February 15, 2007, the Louisiana trial court denied the Swindles’ request for injunctive relief. Id. at 1001. Plaintiffs appealed from that judgment to the Louisiana Court of Appeal for the First Circuit, but that court, on April 4, 2007, found that their cas e w as moot, as “the remedy of allowing the child to attend the ninth grade at this late date provides her with no relief as there are [now] less than 65 days left in the school year.” Id. at 1002. On Oct ob e r 3 0 , 2006, Plaintiffs filed this federal suit for damages under 42 U.S.C. § 1983 on Morgan’s behalf in the United States District Court for the Middle Di s trict of Louisiana. The Swindles alleged that Defendants violated Morgan’s procedural and substantive due process rights and her right to equal protection of the laws. I n th e di strict court, as part of their answers to the complaint and motions for summary judgment, Defendants raised the defenses of sovereign immunity, res judicata, and qualified immunity. The district court granted summary judgment for Defendants dismissing all of Plaintiffs’ claims, concluding that Plaintiffs had failed to adduce evidence

on which a reasonable trier of fact could conclude that Defendants perpetrated “any constitutional violations upon which a § 1 983 claim could be based.” Swindle v. Livingston Parish Sch. Bd. , No. 06-837-JJB, 2008 WL 5157727, at *5 (M.D. La. Dec. 9, 2008) (unpublished). The district court did not reach any of the affirmative defenses raised by Defendants. Plaintiffs timely appealed. 4

In a foo tnot e, which Wes tlaw has not rep rint ed in full , the dis tri ct court ack now led ged 4 that the Sta te Sup erin tend ent of Educ atio n, the Louis iana De partm ent of Educ atio n, and the Sta te Board of Elem enta ry and Sec onda ry E d u c a t i o n wo uld lik ely be enti tle d to so verei gn im mun ity fr oms uit and that Pope wo uld lik ely be enti tle d to qualif iedim munity. H ow ever, it res tedit s judgm ent on the bas is thatPla intiff s had failedt o e st ablis h t heirc laim s. 8 Case: 08-31249 Document: 00511596533 Page: 8 Date Filed: 09/08/2011No. 08-31249 STANDARD OF REVIEW “In determining whether a district court properly granted summary judgment, this Court must review th e r e cord under the same standards that guided the district court.” Little v. Liquid Air Corp. , 952 F.2d 841, 847 (5th Cir. 1992). “We must review the evi dence, as well as the inferences that may be drawn from the evidence, in the light most favorable to the party that opposed the motion for summary judgment.” Id. “Th e c o u rt shall grant summary judgment if the movant shows that there is no genuine dispute as to any

m a t erial fact and the movant is entitled to judgment as a matter of l a w . ” F e d

. R

. C iv. P. 56(a). Summary judgment is required against a party who, “ af t e r 5 adequate time for discovery[,]

. . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on wh i c h that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). C onversely, “[i]f the evidence would p e r m it a reasonable trier of fact to find for the non-moving party, then summary judgment should not be granted.” Anaya v. Traylor Bros., Inc. , 478 F.3d 251, 253 (5th Cir. 2007) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (198 6)). DISCUSSION Except for its dismissal of Plaintiffs’ procedural due p r o c e s s claim regar di n g th e denial of Morgan’s request for alternative education, we see no
error in the district court’s judgment. Moreover, Plaintiffs have wa iv e d a l l of their other claims by failing to adequately brief and argue them on appeal. 6

While this cas e wa s pend ing bef ore this court, the text of Rule 56 changed

. T h i s 5 change w as m eantto “carr[y] for wa rd the summ ary-judgm ent stand ardexpres se d in for me r sub divis ion (c). ” Fed. R. Civ. P. 56 advis ory com mi tte e note (201 0 Ame ndm ents )

. Thus, wh ile the dis tri ct court’s dec isi on and our dec isi on rely on sli ghtly dif fer ent language, both rep res ent the sam e l egal st andar d. The Fede ral Rules of App ellat e Proc edur e requ ire an app ellant to pr es ent in his brie f 6 his “co ntentio ns and reas ons for them , wi th cit atio ns to the autho rit ies and parts of the rec ord on wh ich the app ellant reli es .” Fed. R. App

. P. 28(a)( 9)(A). “A liti gant’s failure to pr ovide legal 9 Case: 08-31249 Document: 00511596533 Page: 9 Date Filed: 09/08/2011No. 08-31249 I.

“ P r o cedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge , 424 U.S. 319, 332 (1976). Defendants do not contend that procedural due process is totally inapplicable to terminations of a p ub lic school student’s public education benefits. On the contrary, they and the district court recognize that Louisiana’s statutes create a “property interest” pro t e c t e d by the Due Process Clause of the Fourt e e n th Am e ndment in a public school child and her parents receiving such benefits. Swindle , 2008 WL 5157727, at *2 (citing Goss

v. Lopez , 419 U.S. 565, 574 (1975)). They acknowledge th a t this protected property interest cannot “be taken away for [the student’s] misconduct without adherence to the minimum pro c e dures required by th[e Due Process] Clause.” Id. (quo t i n g G o s s , 419 U.S. at 574). The district court also recognized that the state statute s “ m ay potentially give rise to a property interest in alternative education” and that “[i]f such a property interest does exist, then Morgan would indeed be entitled to due process before being denied alternative education.” Id. at *3. Nevertheless, the district court concluded that Morgan had no protected property interest in alternative e duc atio n b e c au s e the state statute allows a local school system to annually apply for and obtain from the BESE, “for economically justifiable reasons,” a waiver of its obligation to provide alternate education. Id. (quoting La. Rev. Stat. Ann. § 17:416.2(B)(1)) (i n t e r n al quotation marks omitted). It had been the LPSB’s “pattern and practice” in previous school years

or fac tual analys is res ults inw aiver. ” Nw

. Enters

. Inc. v. City of Ho uston , 352 F.3d162 , 183 n.24 (5th Cir. 2003) ; see also Turn er v. Qu ar term an , 481 F.3d 292, 295 n . 1 ( 5 t h Cir. 2007) (s tat ing that the court wi ll not “co nsi der iss ues that are not ade quate ly b rief ed” in the app ellant ’s brie f, even if the app ellant att em pt s to inco rp orat e by ref ere nce argum ents mad e els ew here). 10 Case: 08-31249 Document: 00511596533 Page: 10 Date Filed: 09/08/2011No. 08-31249

to obtain such a waiver. Id. Although the LPSB did not obtain a waiver for the 2005-2006 school year prior to Morgan’s e x p u l sion on November 14, 2005 and her parents’ request that she receive alternative education, the LPSB belatedly obtained such a waiver for the 2005-2006 school year in Apri l 2 0 0 6

. Thus, the district court concluded th a t M o rgan and her parents did not have a constitutionally p r o tected expectation in receiving alternative education in Livingston Parish. Id. As f o r P l a intiffs’ arguments that the waiver could not retroactively defeat Morgan’s p r o p erty right to alternative education benefits and that the waiver had been granted illegally, the district court declined to find

one way or another because “Plaintif f s c i t e n o case law or statute for the proposition that the Board’s waiver was illegally granted.” Id. We cannot agree with the district court’s analysis in this respect. Morgan’s constitutional claim that she was entitled to procedural due process before she

was refused access to alternative education is ent i r e ly distinct from and collateral to her substantive claim of entitlement under state law to continued education through an alternative education program. See Mathews v. Eldridge , 424 U.S. 319, 330-31 (1976). Morgan claims that she was entitled to predeprivation n o tice and some kind of hearing, before a possibly erroneous termination of her right to alternative education caused her to lose her right to education entirely for the 2005-2006 school year and suffer irreparable damage. When we analyze her c o n stitutional claim of procedural due process as a separ a t e entitlement to protect against the erroneous or wrongful deprivation of her claim to continued public education, we conclude that she was entitled to

some kind of notice and hearing, either prior to or soon after she was d eprived of her right to continued education, and that in th is case she was afforded neither. Th e r e f

o r e , based upon the record before us, we conclude that neither Pope nor the LPSB were entitled to summary judgment on this claim.

11 Case: 08-31249 Document: 00511596533 Page: 11 Date Filed: 09/08/2011No. 08-31249 A. In Goss v . L o

pez , 419 U.S. 565 (1975), the Supreme Court held that a student has a property interest in continued receipt of an education when the state creates a public school system and requires children to attend. The Court explained that two Ohio statutes “direct[ e d] local authorities to provide education to all residents between f iv e a n d 21 years of age, and a compulso ry - a ttendance law require[d] attendance for a school year of not less than 32 weeks.” Id. at 573. Therefore, “on the basis of state law, appellees plainly had legitimate claims of entitlement to a p ub l ic education.” Id. Put another way, although the state “may not be constitutionally ob ligated to establish and maintain a public school system, [Ohio] has nevertheless done so and has required its children to attend.” Id. at 574. The Court emphasized the
consequence of public education, calling it “‘perhaps the most important f unction of state and local governments.’” Id. at 576 (quoting Brown v. Bd. of Educ ., 347 U.S. 483, 493 (1954)). The Court determined that the state l aws also created a liberty interest in not being stigmatized by suspension. Id. at 5 7 4 (“Th e Due Process Clause also forbids arbitrary deprivations of liberty. ‘Where a person’s good name, reputation, honor, or integrity is at stake because of what the go v ernment is doing to him,’ the minimal requirements of the Clause must be satisfied.” (quoting Wisconsin v. Constantineau , 400 U.S. 433, 437 (1971)). “The Fourte e n th Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Board s of Education not excepted.” Id. (quoting W. Va. Bd. of Educ. v. Barnette , 319 U.S. 624, 637 (1943)) (internal quotation marks omitted). This court has consistently held that a student who is removed from her regular public school, but is given access to an alternative education progr a m , has not been denied her entitlement to public education. See Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist. , 635 F.3d 685, 690 (5th Cir. 2011); Nevares

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v. San Marcos Consol. Indep. Sch. Dist. , 111 F.3d 25, 26 (5th C ir. 1997). This rule is consistent with Goss ’s directive that, wh e r e state law creates an entitlement to public educati o n , i t i s a student’s “ total exclusion from the educational process for more than a trivial period” that constitutes a deprivation of protected property and liberty in t erests subject to due process constraints. Goss , 419 U.S. at 576 (emphasis added). Accordingly, we have explained that “a student’s transfer [from her regular school] to an alternative education program does not deny access to public education , and therefore does not violate the Fourteenth Amendment interest.” Harris , 635 F.3d at 690 (emp h a s i s a dded) (citing Nevares , 111 F.3d at 26-27); Nevares , 111 F.3d at 26 (c o n c l uding that a student removed from his regular school for disciplinary reasons and reassigned to an alternative education program was “not

. . . d e nied access to public education, even temporarily”); see also Riggan v. Midland Indep. Sch. Dist. , 86 F. Supp. 2d 647, 655 (W.D. Tex. 2007) (recognizing that “[t]he [Nevares] Court found that a constitutional issue was not raised because the plaintiff was never denied access to public education,” and that “[Nevares] reinforces the basic idea that protected property rights are affected and due process protections are required when the discipline i m p o s e d amounts to a deprivation of access to education”). In other w o r d s , such a reassignment does not amount to a “total

e xclusion from the educational process.” See Goss , 419 U.S. at 576; McCall v . Bossier Parish Sch. B d

. , 785 So. 2d 57, 66 (La. App. 2d Cir. 2001) (“[T]he expulsions i n this case . . . were made with an assignment to [an] alternative school. Because this is not an expulsion in the traditio n a l s ense causing total deprivation of education, the U.S. Fifth Circuit Court of Appeals has indicated that no protected property interest is impli c a ted for purposes of due process analy s i s i n a school’s expulsion and assignment of a student to an alternative school.”) (citations omitted); Stafford Mun. Sch. Dist. v. L.P. , 64 S.W.3d 559, 563 (Tex. App. 2001) (“[H]ere, as in Nevares , [a student reassigned to an alternative
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education program] was not excluded from the educational process . . . [and so] the transfer

. . . did not involve a property or liberty interest.”). It follows clearly and inexorably from these d e c i s i o ns that when a child is denied the right to alternative education provided her by state law, resulting in her “total exclusion from the educational process[,]

. . . [n]either the property interest in educational benefits

. . . denied nor the liberty interest in reputation, which is also implicated, is so insub s t a n tial that [such deprivation] may constitutionally be imposed b y any procedure the school chooses, no matter how arbitrary,” Goss , 419 U.S. at 576. Consistent with these cases, and contrary to the conclusion of the district court, we conclude that Louisiana’s statutory scheme provided Morgan an entitlement to receive alternative education during her expulsion, i.e., Morgan had a property interest in continued alternative education of which she could not be deprived without due process. The importance of public education to students and the public, upon which the Supreme Court remarked in Goss, id. , does not

cease upon a student’s suspension or expulsion. Recognizing this, Louisiana’s statutes provide, as a general rule, that when a child is suspended or expelled, she is not automatically deprived of all further public educa t i o nal benefits. R ath e r, in the main, the student “shall remain under the supervision of th e governing authority of the city, parish, or other local public school system taking such action using alterna t iv e education programs
. . . .” La. Rev. Stat. Ann. §17:416.2(A)(1); see also McCall , 785 So. 2d at 58 n.1 (“An expulsion includes the removal of the student from all regular school settin g s for a period of not less than one school semester, during which time the school board shall place the pupil in an alternative school.” (citing La. Rev . S t a t. § 17:416(A)(2)(c))). Only

cert a i n categories of expelled students are statutorily ineligible for such programs, such that they may be excluded from public education altogether, La. Rev. Stat. Ann. §§ 17:416.2(A)(1), 17:416(B) & (C)(2), and it has not been shown

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for purposes of summary judgment that Morgan falls within such a class of expellees. The statutes also allow the school board to apply for a waiver from its

7 obligation to provide alternative education programs. See L a . R e v . S tat. § 17:416.2(B) (stating that “[a]ny

. . . local school system unable to comply with [§ 17:416.2(A)(1), the alternative education program re qu i rements] for economically justifiable reasons . . . may apply to the [BESE] on a school year to school year basis for a waiver from the requirements

. . .”). However, the statute provides that a board may only do so on a “school year to school year” basis. Id

. Consequently, we believe that the LPSB’s failure to apply for and obtain such a waiver prior to the start of th e 2005-2006 school year raised reasonable expectations that, in general, under state law, expelled students would continue under the LPSB’s supervision and cont i n u e to receive alternative education during that school year. It was not until March 2006—four months after Morgan

was expelled and the LPSB refused to provide Mor g a n alternative education—that the LPSB applied for a waiver from the BESE. Ac c o r dingly, when Morgan’s parents applied for her entry into an al t e r n a tive education program, she had such a right recognized and protected by s t a t e law. We see nothing in Louisiana law that allows for the retrospective alteration or deprivation of an expelled student’s right to alternativ e education, and we are

De fen dant s cont end that Mo rgan’s mi sc ondu ct plac es her in one of thes e excep tio ns, 7 viz ., that she wa s a st uden t expe lled for pos se ss ion o f m arijuan a on sc hool pr ope rty or at a sc hool event , s e e L a. Rev. Sta t. Ann. § 17:4 16(C) (2) (b) (ii). Ho wever, the sum mary judgm ent rec ord doe s not indi cat e that De fen dant s have intr oduc ed any evide nce d e mo nst rat ing that Mo rgan wa s ever char ged wi th, or deter mi ned to be guilty of, suc h cond uct , as def ined unde r Louis iana law

. See State v. Proc tor , 901 So. 2d 477, 482 (La. Ct. App

. 5th Cir. 2005) (exp lainin g that“ [m ]er e p res enceinan areaw heredrugsare foun d or m ereass ocia tio n wit h t he per so n in act ual pos s e s sio n doe s not cons tit ute cons tru ctive pos se ss ion” ); Mc Cal l , 785 So. 2d at 59, 67 (c oncl udin g that “p os se ss ion o f a [ c ontr olle d danger ous sub st ance on sc hool ground s]

. . . didno t occ ur”w hen st uden ts“ ack now led ged they lef t sc hool wi thou t autho rizat ion, sm ok ed wh at the y believedwas marijuana [andwhatthe court ass ume d wa s a cont roll ed dangerous sub st ance , of wh ich they we re unde r the infl uence] and im me diat ely ret urned to sc hool wh ere they we re app rehe ndedina parki ng lo t by a sc hool off icia l”)

. 15 Case: 08-31249 Document: 00511596533 Page: 15 Date Filed: 09/08/2011No. 08-31249

not persuaded that such action can be used to retroactively defeat or circumvent

a s t u d e nt ’ s ri ght to due process when she is deprived of her state law right to continued public alternative education. Therefore, because the Louisiana statutes directed that a student such as Morgan be provided alternative educ atio n , r ather than excluded from public education entirely, we conclude that she was entitled to the procedural protections provided by the Due Process Clause before she could be deprived of alternative education. 8 Our analysis is confirmed by the Supreme Court’s decision in Paul v. Davis , 424 U.S. 693 (1976). There the Court explained:

It is a p p arent from our decisions that there exists a variety o f i n t e rests which are difficult of definition but are nevertheles s comprehended within the meaning of either “liberty” or “property” as meant in the Due Proc e s s C lause. These interests attain this constitutional status by vi rt u e o f the fact that they have been initially recognized and protected by s t a t e law, and we have repeatedly ruled that the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter that protected status. In Bell v. Burson , 402 U.S. 535 (1971), for example, the State by issuing drivers’ licenses recognized in its citizens a right to operate a vehicle o n the h i gh w ay s of the State. The Court held that the State could not withdraw this right with out giving petitioner due process. In Morrissey v. Brewer , 408 U.S. 471 (1972), the State afforded

To be clea r, we do not hold tha t ther e is a genera lized cons tit utio nal right to 8 alte rnat ive educ atio n pr ogram mi ng for expe lled st uden ts

. As expla ined in Go ss , “int ere st s in pr ope rty [p rot ect ed by the Du e Proc es s Claus e] are norm ally ‘not cre ated by the Cons tit utio n. Rather , they are cre ated and thei r dim ens ions are def ined ’ by an inde pend ent so urc e suc h as st ate s tat utes or rulesentit ling the cit izen to ce rta in benef its .” Go ss , 419 U. S. at 572-73. We me rely reaf

fir m Go ss ’s conc lus ion that wh ere , as “[h]e re, on the bas is of st ate law , [a st uden t] plai nly had [a] legit im ate clai m[] of enti tlem ent to a p ublic educ atio n . . . the Sta te is cons tra ined to rec ognize [that enti tle m ent] as a pr ope rty inte res t wh ich is pr ote cte d by the Du e Proc es s Claus e and wh ich may not be tak en aw ay . . . wi thou t adhe renc e to the mi nim um pr oce dur es requ ired by that Claus e.” Id. at 573- 74. In this cas e, Louis iana law cre ated and def ined the par ame ter s of suc h a pr ote cte d pr ope rt y i n t e r e s t by man dat ing that , subject to certain narr ow excep tio ns, loca l educ atio n autho rit ies mus t pr ovide st u d e n t s e xpell ed fr om t h e ir r e gular sc hools wi th publ ic educ atio n in the for m of alte rnat ive educ atio n pr ogram s, rather than being reli eved of the obligat ion to pr ovide publ ic educ ation alto gethe r. Und er Go ss , this en titlem ent is pr ote cte d by the requ irem entsof d ue pr oce ss . 16 Case: 08-31249 Document: 00511596533 Page: 16 Date Filed: 09/08/2011No. 08-31249

parolees the right to remain at liberty as lon g a s th e conditions of their parol e w e r e not violated. Before the State could alter the status of a parolee because of alleged violations of these conditions, we held that the Fourteenth Amendment’s guarantee of due process of law required certain procedural safeguards. I n e a c h of these cases, as a result of the state action complained of, a right or status previously recognized by state law was distinctly altered or extinguished. It was this alte r a t i o n, officially removing the interest from the recognition and protection previously afforded by the State, which we found sufficient to invoke the procedural guara nt e e s contained in the Due Process Clause of the Fourteenth Amendment.

Id. at 710-711 (footnote omitted). Just as in Bell and Morrissey , as a result of the

s t ate action by the LPSB, Pope, and the BESE, a right or status pr e vi o u s ly recognized b y s t ate law and vested in Morgan was distinctly altered or extinguished. Th i s alteration, officially removing Morgan’s interest from the recogn i t i o n and protection previously afforded by the state, was sufficient to invoke the procedural guarantees contained in th e D u e Process Clause of the Fourteenth Amendment. B. “Once it is det er min e d th at du e process applies, the question remains what
process is due.” Goss , 419 U.S. at 577 (quoting Morrissey v. Brewer , 408 U.S. at 481) (internal quotation marks omitted). “The stude n t’s interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences.” Id. at 579. “Disciplinarians, although proceeding in utmost good faith, frequently act o n the reports and advice of others; and the

c ontrolling facts and the nature of the conduct under challenge are ofte n disputed. The risk of error is not at all trivial

. . . .” Id. at 580. On the other hand, “[t]h e difficulty is that our schools are vast and complex. Some modicum of discipline and order is essential if the educational function is to be performed.” Id. As a result, the court held that “[a]t the very minimum,

. . . students facing

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suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing.” Id. at 579. The Court said that for a suspension of ten days or less, the student must be provided “oral or w ri t ten notice of the charges” and “an explanation of the evidence the authorities have and an opportunity to present h i s side of the story.” Id. at 581. But the Court indicated that more formal proceedings might be required in cases involving longer suspensions or expulsions. Id. at 584 (“We should also make it clear that we have addressed ourselves solely to the short suspension, n o t exceeding 10 days. Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures. Nor do we pu t aside the possibility that in unusual situations, although involving only a s h o rt s uspension, something more than the rudimentary procedures will be required.”). As the Court explained i n Mathews , “[p]rocedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests[,]

. . . ‘flexibl[y]

. . . call[ing] for such procedural protections

as the particular situation demands.’” 424 U.S. at 332, 334 (quoting Morrissey , 408 U.S. at 481). “Accordingly, resolution of the issue whether the

. . . procedures provided here are constitutionally suffi c ient requires analysis of the governmental and private interests that are affected.” Id. at 334 (citing Arnett

v. Kennedy , 416 U.S. 134, 167-68 (1974) (Powell, J., concurring in part); Goldberg

v. Kelly , 397 U.S. 254, 263-66 (1970); Cafeteria Workers v. McElroy , 367 U.S. 886, 895 (1961)). “More precisely, [the Court’s] prior decisions indicate that ident if i cation of the specific dictates of due process generally requires consideration of three distinct factors: First, the p rivate interest that will be

af f e c ted by the official action; second, the risk of an erroneous deprivation o f such interest through the procedures us e d , a n d the probable value, if any, of

a d di ti onal or substitute procedural safeguards; and finally, the Government’s

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interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 334-35 (citing Goldberg, 397 U.S. at 263-71). Here, the private interest—Morgan’s ability t o c o ntinue her public educat i o n , without the delay, damage and stigma of being forced to repeat the eighth grade—is i m m e n s e . As the Court stated in Goss and has continued to reiterate, “‘[e]ducation is perhaps the most important function of state and local governme n t s . ’” Franchise Tax Bd. v. Hyatt , 538 U.S. 488, 499 (2003) (quoting Brown , 347 U.S. at 493) ; New Jersey v. T.L.O. , 469 U.S. 325, 353 (1985) (Blackmun, J., concurring in the judgment) (same); Columbu s Bd. of Educ. v. Penick , 443 U.S. 449, 490 (1979) (Rehnquist, J., dissenting, joined by Powell, J.) (same); Goss , 419 U.S. at 576 (same). Public education has also been described as “a most vital civic institution for the preservation of a democratic system of government.” Sch. Dist. of Abington Twp. v. Schempp , 374 U.S. 203, 230 (1963) (Br e nnan, J., concurring). Accordingly, the Court’s cases have “consistently recognized the importance of educati o n t o the professional and personal development of the individual.” City of Cincinnati v. Discovery Network, I nc . , 5 07 U.S. 410, 437 (1992) (Blackmun, J., concurring) (citing Brown , 347 U.S. at 493). Moreover, it cannot b e d e n i ed that “[i]ncreasing global competition also has made primary and secondary education e c o nomically [even] more important.” U n ited States v. Lopez , 514 U.S. 549, 621 (1995) (Breyer, J., dissenting, jo i n e d by Stevens, Souter, and Ginsburg, JJ.). Further, as the Court also recognized in Goss , 419 U.S. at 580, and as the facts of this case demonstrate, the risk of an erroneous deprivation through the lack of procedures used by the LPSB is significant. Although the Swindles were
never p rovi de d notic e or a hearing regarding why Morgan was denied alternative

e du cation, in this appeal Defendants take the position that it was be c a u s e Morgan possessed dru g s on school grounds or at a school event. Yet, the

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summary judgment evidence supports the opposite conclusion: Morgan was not

ac c u s e d o f o r expelled for possession of marijuana on school property or at the school event. Instead, she was accused of and expelled for “any other serious offense.” Therefore, the facts of this case reveal that absent procedures to protect against secret determinations and post hoc rationalizations, the opportunity for

error is great. See Freeman v. City of Dallas , 186 F.3d 601, 607 (5th Cir. 1999) (“Non-disclosure by the government poses the risk of an erroneous deprivation because it forecloses the individual from t e s tin g th e accuracy of the government’s evidence.”). The probable value of even minimal procedural safeguards in this case is clear a n d u n disputable. Had the Swindles been provided any notice and an opportunity to be heard regarding the denial of Morg a n ’ s ri gh t to alternative education, it appears likely that they could have demonstrated that Morgan did not fall within the c a t e go ry of expellees disqualified for alternative education. What is more, they could have disputed Pope’s erroneous claim that LPSB had applied for or received from the BESE a waiver from the state law requirement that it provide Morgan alternative education for the 2005-2006 school year. Had this notice and some kind of a hearing occurred before, or at a reasonable time after, the deprivation of her alternative education, Morgan might have avoided most of the consequences of what appears on this record to have been a mistaken decision. See Mathews , 424 U.S. at 331 (noting that pre-deprivation process is particularly app r o p ri a te where “full relief cannot be obtained at a postdeprivation hearing” (citing Re g ’ l Rail Reorganization Act Cases , 419 U.S. 102, 156 (1974)); see also Cuellar v. Tex. Emp’t Comm’n , 825 F.2d 930, 934 (5th Cir. 1987) (noting the benefit provided b y holding “‘some kind of a hearing’ [in order to] ensur[e] an ef f ective ‘initial check against mistaken decisions’” (quoting Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 542 (1985))).

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Finally, p r o viding the Swindles with a minimal notice and hearing saf e gu ar d woul d not h ave a dver s ely af f ect e d D efendants’ interests. See Mathews , 434 U

. S

. a t 3 35. The cost of providing notice that explains the basis for the denial, and some form of hearing before an administrator, is extraordinarily low. We are speaking only of administrators performing their norm al functions of communicating with parents and s t udents. Therefore, as in Goss , we conclude that Morgan was, at a minimum , en ti t l e d to some kind of notice and hearing before the LPSB deprived her of alternative education. See Goss , 419 U.S. at 579. “The ulti m a t e balance involves a determination as to when, under our constitutional system,

. . . procedures must be imposed u p o n administrative action to assure fairness.” Mathews , 424 U.S. at 348. This case starkly demonstrates that absent fair procedures, a stud ent can be mistakenly d enied the right to public education for most of a school year and unnecessarily made to repeat the same grade. On the record before us, Morgan was provided neither due process notice nor a n o p p o rt u nity to be heard regarding the denial of her right to alternative education. Therefore, it is clear that Pope and the LPSB are not entitled to summary judgment on this claim. II. As we can affirm summary judgment on any available ground, because we have concluded that a reasonable trier of fact could f i nd in Plaintiffs’ favor on one claim, we now examine Defendants’ claimed defenses to suit. A. The State Superintendent of E ducation, sued in his official capacity, the DOE and the BESE, argue that they are immune from the suit because they are entitled to sovereign immunity. We agree. “[T]he Constitution does not provide for federal jurisdiction over suits [for money damages] against nonconse nting States.” Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 73 (2000). Sovereign immunity also extends to state officials sued in their official capacity for monetary relief.

21 Case: 08-31249 Document: 00511596533 Page: 21 Date Filed: 09/08/2011No. 08-31249

See id .; Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 690 n.55 (1978) (“[O]fficialcapacity suits generally represent only another w ay of p l e a din g an action against

a n e nt i ty of which an officer is an agent

. . . .”). At oral argument, Plaintif f s disclaimed that they had any claims for equitable relief a g a i n s t the Superintenden t o r the state agencies. They solely sought money damages for past constitutional violations. Therefore, we must affirm the grant of summary judgment in favor of those defendants on the basis that they are entitled to sovereign immunity from suit. B. The LPSB argues that we should conclude that Plaintiffs’ claims against it are barred by res judicata

. It argues that the state trial court’s February 15, 2007 judgment represents a final judgment on the merits that has p r e c l usive effect against al l claims not raised in that proceeding, including the claims herein. We disagree. Res judicata requires that there have been a “prior action [that] was concluded by a final judgment on the m e ri t s . ” Test Masters Educ. Servs., Inc. v. Singh , 428 F.3d 559, 571 (5th Cir. 2005). We look to state law to determine whether a prior state court judgment was final. See Blanchard 1986, Ltd. v . P a rk Plantation , LLC, 553 F.3d 405, 407 n.8 (5th Cir. 2008). Louisiana law provides that it would “be quite incongruous to declare an entire suit moot and yet give [r]es judicata effect to a distri c t c o u rt judgment in the moot proceeding.” Randle v. G a l la gh e r , 169 So. 2d 224, 226 (La. Ct. App. 4th Cir. 1 9 6 4). Applying this principle, a Louisiana Court of Appeal held that a t ri a l court’s judgment, in a case in which a married plaintiff sought a separation and

ob t ained an alimony award, was not a final judgment that would have “[r]e s judicata effect” on subsequent alimo ny determinations. Id. While the original

case “was pending [before the state supreme court], defendant obtained a divorce,” and thus the trial court’s alimony award bec a m e moot. Id

. at 225. Mootness rendered the original trial court judgment not a final judgment, even
22 Case: 08-31249 Document: 00511596533 Page: 22 Date Filed: 09/08/2011No. 08-31249

though the Louisiana Supr eme Court had denied motions to dismiss that suit, leaving intact “the judgment of the lower c ourt,” including the alimony award. Id. at 226; see also Randle v. Randle , 1 1 9 So. 2d 495 (La. 1960) (the Louisiana Supreme Court decision); Randle v. Randle , 144 So. 2d 461 (La. Ct. App. 4th Cir. 1962) (the Louisiana Court of Appeal decision affirming the alimony award). The facts of Randle are analogous to wh a t occurred in this case. The February 15 judgment of the state trial court “denied [a] mandatory injunction” that Plaintiffs so u ght a g ainst the LPSB. B.W.S., Jr. v. Livingston Parish Sch. Bd. , 960 So. 2d 997, 1001 (La. Ct. App. 1st Cir. 2007). Plaintiffs a p p e a led that judgment and the state appellate court denied the writ because “the remedy of allowing the child to attend the ninth grade at this late date provides her with no relief.” Id. at 1002. In other words, the case was held to be moot. Therefore, under Louisiana law, the judgment of the trial court is not a final judgment that has a preclusive effect against claims not raised in that proceeding. C. Finally, Superintendent Pope re-urges his motion for qualified immunity, which the district court did not specifically rule on in its opinion granting summary judgment. To defeat a cla i m o f qu a lified immunity, a plaintiff must demonstrate both that the right the defendant was alleged to have violated was “cl e arly established,” and that the defendant acted “unreasonably” in light of that clearly establish e d l a w . B rown v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010) (“Once an official pleads the defense, the burden then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to whether the official’s allegedly wrongful co n duct viol at e d cl e arly e s t ab li sh e d l aw.

. . . [In addition,] a plaintiff must allege facts sufficient to demonstrate that no reasonable officer could have believed his actions were proper.”). “Whethe r a n asserted federal right was clearly established at a particular time, so that a public official who allegedly violated the right has no qualified immunity from

23 Case: 08-31249 Document: 00511596533 Page: 23 Date Filed: 09/08/2011No. 08-31249

suit, presents a question of law, not one of ‘legal facts.’” Elder v. Holloway , 510 U.S. 510, 516 (1994) (citing Mitchell v. Forsyth , 472 U.S. 511, 528 (1985); Harlow

v. Fitzgerald , 457 U.S. 800, 818 (1982)). “That question of law, like the generality of such questions, must be resolved de novo on a p p e a l

. ” Id. (citing Pierce v. Underwood , 487 U.S. 552, 558 (1988)). “A court engaging in review of a qualified immunity judgment should therefore use its ‘full knowledge of its own [and other relevant] precedents.’” Id. (alteration in original) (quoting Davis v. Scherer , 468 U.S. 183, 192 n.9 (1984)). “The touchstone of th[e] inquiry” into whether an official’s conduct was unreasonable in light of clearly established law “is whether

a reasonable person would have believed that his conduct conformed to the constitutional standard in light of the information available to him.” Goodson v. City of Corpus Christi , 202 F.3d 730, 736 (5th Cir. 2000). In o ther words, we perform an objective analysis of the reasonab l e n e s s of the official’s conduct in light of the circumstances and are forbidden from considering the official’s “subjective state of mind.” T h o m p s o n v. Upshur Cnty., Tex., 245 F.3d 447, 457 (5th Cir. 2005). As we have already explained, it has been clear since Goss that when state l a w directs local authorities to provide public education, a student’s “t o t a l exclusion from the educational process” must be accompanied by the procedural protections required by the Due Process Clause. E.g. , Goss , 419 U.S. at 576. In Nevares and Harris , this court made clear that no deprivation of the liberty and property interests associated with public education occurs when a stude n t is removed from her regular school environment and transferred to an alternative education pr o gram. Harris , 635 F.3d at 690; Nevares , 111 F.3d at 26. In a disciplinary alternative education model like th o s e in Nevares in Harris—and like the Louisiana statutory scheme at issue here —a student’s expulsion from 9

As expla ined above, only p a r t i c u l a r cat egori es of expe lled st uden ts can be deni ed 9 alte rnat ive educ atio n unde r Louis iana’ s sc hem e. See La. Rev. S t at

. Ann. §§ 17:4 16.2 (A) (1) , 24 Case: 08-31249 Document: 00511596533 Page: 24 Date Filed: 09/08/2011No. 08-31249

her regular school does not deny her access to the educational process, because she continues to receive a public education in the form of alternative programming. E.g. , McCall , 785 So. 2d at 66 (In Louisiana, “expulsion[]

. . . made with an assignment to an alternative school

. . . is not an expulsion in the traditional sense causing total deprivation of education

. . . .” (citing Nevares , 111 F.3d 25)). Under these decisions, a constitutionally relevant deprivation occurs when an official denies a student access to alternative e ducation to which she has an entitlement based on state law; it is by th a t a c t ion that the official “total[ly] exclud[es]” the student from public education, Goss , 419 U.S. at 576. We conclude that these “precedents

. . . placed

. . . beyond debate,” Ashcroft v. Al-Kidd , 131 S. Ct. 2074, 2083 (2011), the question of whether procedural due
process safeguards had to be complied with in connection with Pope’s refusal to permit Morgan access to alternative education. With respect to th e process due, this court held in Meyer v. Austin Independent School District that it was clearly established that before students could be deprived of their right t o e du cation they must be afforded the opportunity “to tell their side of the sto ry . ” 161 F.3d 271, 275 (5th Cir. 1998). “Reasonable public officials

. . . could not differ on whether allowing the students to tell their side of the story was required.” Id. “While [a principal] was free to suspend the students after hearing their stories, Goss unambiguously required him to al l o w th e m to present those stories, and if [the principal] did not do so, he violated the students’ due process rights.” Id. ; see als o Tex. Faculty Ass’n v. Univ. of Tex. , 946 F.2d 379, 385-86 (5th Cir. 1991) (“In Goss , [419 U.S. at 583,] the Court held that students are entitled to a due process hearing before being suspended from school for nonacademic reasons because ‘effective notice and an informal hearing

. . . will provide a meaningful hedge against erroneous action.’”

17:4 16(B) & ( C)( 2). 25 Case: 08-31249 Document: 00511596533 Page: 25 Date Filed: 09/08/2011No. 08-31249

(omission in origi n a l) )

. The Louisiana statutes direct school boards both to provide public education generally and, c o n n e c t ed with that right, to provide suspended and expelled students alternative education, unless a specific statutory exception applies. The summary judgment record indicates that Morgan fell w ithin the class of people protected by both statutes. She was provided no notice or hearing when her parent s ’ r e qu e st that she receive alternative education was not granted. Pope implies that his conduct was obj e c t iv ely reasonable because he did not know th at the school system had failed to obtain a waiver from the BESE relieving i t of its obligation to provide alternative education in the 2005-2006 school year. What is at i s s u e here, however, is not whether Pope was

1 0 reasonable in beli evi ng that to be the case. While Pope was free to deny the Swindles’ petition for Morgan to receive alternative education after hearing the Swin dl e s ’ s tory , Goss and its progeny unambiguously required him to allow them to present their stories and their side of the case. See Meyer, 161 F.3d 271. If he

To the exten t that Pope sugges ts that he als o belie ved that Mo rgan’s allege d cond uct 1 0
exem pt ed the sc hool boar d fr om its duty to pr ovide her alte rnat ive educ atio n, see La. Rev. Sta t. Ann. § 17:4 16.2 (A) (1) , this belie f wa s cont rary to clea r Louis iana law

. See id. § 17:4 16(C) (2) (b) (ii); Proc tor , 901 So. 2d 482; Mc Cal l , 785 So. 2d at 67. Mo reo ver, the reas onable nes s of this pur ported belie f is irr elevant to our qualif ied im munity inquiry regar ding Plaint iffs’ pr oce dur al due p r o c es s clai m. Regardles s of wh ethe r Pope correc tly thou ght that ther e wa s a bas is for denyi ng Mo rgan alte rnat ive edu c at i o n , h e wa s st ill obligat ed to give he r noti ce and an o pp ort unity to be hear d. H ere , Pope did not give M organ or herparen tsnotic e thatMorganwas chargedwith an offe nse that coul d res ult in denial of alte rnat ive educ atio n; rather, she wa s char ged wi th “any othe r se riou s off ens e.” See Go ss , 419 U. S. at 581 (“ [D ]ue pr oce ss requ ires

. . . that the st uden t be given oral or writt en noti ce of the char ges agains t him and, if he deni es them , an expla n a t i o n of the evide nce the autho rit ies have and an opp ort unity to tel l his sid e of the st ory. . . . [I]n being given an opp ort unity to expla in his vers ion of t h e f a c t s at this dis cus sio n, the st uden t fir st mus t be tol d wh at he is acc use d of doi ng and wh at the bas is of the acc usa tio n is. ”) ; Ha rri s , 635 F.3d at 691 (“We mus t fir st be clea r as to the bas is for [the st uden t’s ] sus pens ion.

. . . The tru th of th[ e] char ges is not the ques tio n in evaluat ing wh ethe r Go ss has been sat isf ied

. Inst ead , the iss ue is wh ethe r [the st udent] wa s ade quate ly info rm ed of the sp ecif ic char ges fr om wh ich the sus pens ion derived, and wh ethe r he wa s given ‘an opp ort unity to tel l his sid e of the st ory. ’” (quo ting Go ss , 419 U. S. at 581) ). 26 Case: 08-31249 Document: 00511596533 Page: 26 Date Filed: 09/08/2011No. 08-31249

did not do so, as the summary judgment record strongly indicates, the n h e violated Morgan’s procedural due process rights. See id. Accordingly, Pope is not entitled to summary judgment based on his claim

o f qualified immunity, although he is still entitled to raise the de f e n s e o f qualified immunity at trial. CONCLUSION For these reasons, we AFFIRM the district court’s summary judgment in principal part, but we REVERSE the summary judgment in respect to Plaintiffs’ claims that Morgan was deprived of her constitutional right to procedural due process when Defendants denied her right under state law to continued public educational benefits through an alternative education program wi th o ut some kind of notice and some kind of hearing. We REMAND the case to th e district court for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

27 Case: 08-31249 Document: 00511596533 Page: 27 Date Filed: 09/08/2011